LRB-1127/1
DAK:jld:nwn
2007 - 2008 LEGISLATURE
February 29, 2008 - Introduced by Law Revision Committee. Referred to
Committee on Public Health, Senior Issues, Long Term Care and Privacy.
SB548,2,10
1An Act to repeal 49.45 (8) (a) 1., 49.498 (2) (e) 1., 146.40 (1) (bm), 146.40 (1) (bp),
2146.40 (2) (am), 146.40 (2) (b), 146.40 (2) (bm), 146.40 (2) (f) and 146.40 (4r) (am)
32.;
to renumber and amend 146.40 (2) (c);
to amend 46.275 (5) (b) 4., 46.278
4(1), 46.278 (1m) (am), 46.278 (2) (a), 46.278 (4) (a), 46.278 (5) (a), 46.278 (6) (e)
51. a., 46.278 (6) (e) 1. b., 46.278 (6) (e) 1. c., 46.279 (1) (b), 48.685 (8), 49.45 (6m)
6(am) 1. bm., 49.45 (30m) (a) 2., 49.45 (42) (b), 49.498 (1) (h), 49.498 (2) (e) 2.,
749.498 (2) (e) 3., 50.01 (2), 50.04 (2) (c) 2. b., 50.04 (2) (d) (intro.), 50.04 (2r),
850.065 (8), 50.095 (3) (b), 50.097, 50.14 (1) (a), 50.14 (1) (b), 50.14 (2) (bm), 51.06
9(8) (a) 1., 51.06 (8) (b) (intro.), 51.06 (8) (b) 4., 51.06 (8) (b) 7., 51.62 (4), 146.40
10(title), 146.40 (1) (bo), 146.40 (1) (bt), 146.40 (1) (d), 146.40 (2) (intro.), 146.40
11(2) (a), 146.40 (2) (d), 146.40 (2) (e), 146.40 (2) (em), 146.40 (2) (g), 146.40 (3),
12146.40 (3m), 146.40 (4), 146.40 (4d) (a), 146.40 (4d) (c), 146.40 (4d) (d), 146.40
13(4m), 146.40 (4r) (am) 1., 146.40 (4r) (b), 146.40 (4r) (c), 146.40 (4r) (e), 146.40
14(4r) (em), 146.40 (5) (a), 146.40 (5) (b) (intro.), 146.40 (5) (b) 1., 146.40 (5) (b) 2.
1(intro.), 146.40 (5) (b) 2. a., 155.20 (2) (a) 2., 155.30 (3), 250.042 (4) (a) 3., 250.042
2(4) (b), 250.042 (4) (c) 12., 440.03 (3q), 632.895 (1) (b) 2. and 632.895 (2) (d);
to
3repeal and recreate 49.45 (8) (a) 4. and 146.40 (4d) (am); and
to create 49.45
4(8) (a) 2m., 146.40 (1) (aw), 146.40 (2) (c) 1., 146.40 (2) (c) 2. and 146.40 (2m) of
5the statutes;
relating to: changing the terms home health aide, hospice aide,
6and nurse's assistant to the term nurse aide; changing requirements for
7instructional and competency evaluation programs for nurse aides; changing
8certain requirements for review and investigation of reports of client abuse or
9neglect; and requiring the exercise of rule-making authority (suggested as
10remedial legislation by the Department of Health and Family Services).
Analysis by the Legislative Reference Bureau
Under current law, numerous requirements apply to the employment or
contracting for services of home health aides, hospice aides, and nurse's assistants
by hospitals, nursing homes, intermediate care facilities for the mentally retarded,
home health agencies, and hospices. Generally, before being employed or contracting
for services, a home health aide, hospice aide, or nurse's assistant must have
successfully completed instruction in an instructional and competency evaluation
program certified by the Department of Health and Family Services (DHFS) or a
competency evaluation program approved by DHFS or a program that meets the
DHFS standards, although this requirement does not apply to certain individuals
providing services under one of these classifications who have been employed or
under contract for numerous years. DHFS must review the curriculum of an
instructional and competency evaluation program every 36 months and may
suspend or revoke certification for the program or impose a plan of correction on it;
DHFS may also suspend or revoke approval for a competency evaluation program or
impose a plan of correction on it. DHFS maintains a registry of individuals who have
successfully completed an instructional and competency evaluation program or a
competency evaluation program. DHFS maintains another registry of persons,
employed by or under contract with a facility, organization, or service that is licensed
or certified by or registered with DHFS to provide direct care and treatment to
clients, who are reported to have, allegedly, misappropriated the property of a client
or neglected or abused a client. Such a facility, organization, or service must report
to the Department of Regulation and Licensing (DRL) any such allegation for a
person who is licensed, permitted, certified, or registered by DRL, an examining
board, or an affiliated credentialing board (credentialed). DHFS must review and
investigate any such report, and, if the person is credentialed, refer the report to
DRL.
Effective January 1, 2009, this bill changes the terms "nurse's assistant,"
"hospice aide," and "home health aide" to "nurse aide" and changes the term
"intermediate care facility for the mentally retarded" to "intermediate care facility
for persons with mental retardation." The bill changes the term "instructional and
competency evaluation program" to "instructional program" and requires that DHFS
approve, rather than certify, such programs that meet standards specified by DHFS
by rule. Further, DHFS must review the curriculum of each approved instructional
program every 24 months, rather than 36 months, after the date of approval.
The bill creates a new classification of caregiver, termed a "feeding assistant."
A feeding assistant must successfully complete a state-approved training and
testing program to perform one nursing-related duty before being employed by or
contracting with a nursing home or intermediate care facility for persons with
mental retardation. A nursing home may not use hours of service provided by a
feeding assistant in fulfilling certain staffing requirements.
The bill eliminates the requirement that a facility, organization, or service that
is licensed or certified by or registered with DHFS report to DRL any allegation, for
a person who is credentialed, concerning the misappropriation of property of a client
or the neglect or abuse of a client.
The bill eliminates certain exceptions, by persons who have worked for
numerous years as home health aides, hospice aides, or nurse's assistants, to the
requirement for successful completion of instructional programs or competency
evaluation programs.
For further information, see the Note provided by the Law Revision Committee
of the Joint Legislative Council.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
Law Revision Committee prefatory note: This bill is a remedial legislation
proposal, requested by the Department of Health and Family Services and introduced by
the Law Revision Committee under s. 13.83 (1) (c) 4., stats. After careful consideration
of the various provisions of the bill, the Law Revision Committee has determined that this
bill makes minor substantive changes in the statutes, and that these changes are
desirable as a matter of public policy.
SB548, s. 1
1Section
1. 46.275 (5) (b) 4. of the statutes is amended to read:
SB548,4,22
46.275
(5) (b) 4. Provide services, except respite care that is approved by the
3department, within a skilled nursing facility, intermediate care facility or
4intermediate care facility for
the mentally retarded
persons with mental retardation,
1as defined in s. 46.278 (1m) (am), including a state center for the developmentally
2disabled.
SB548, s. 2
3Section
2. 46.278 (1) of the statutes is amended to read:
SB548,4,154
46.278
(1) The intent of the programs under this section is to provide home or
5community-based care to serve in a noninstitutional community setting a person
6who meets eligibility requirements under
42 USC 1396n (c) and who is diagnosed as
7developmentally disabled under the definition specified in s. 51.01 (5) and relocated
8from an institution other than a state center for the developmentally disabled or who
9meets the intermediate care facility for
the mentally retarded persons with mental
10retardation or
a brain injury rehabilitation facility level of care requirements for
11medical assistance reimbursement in an intermediate care facility for
the mentally
12retarded persons with mental retardation or
a brain injury rehabilitation facility and
13is ineligible for services under s. 46.275 or 46.277. The intent of the program is also
14that counties use all existing services for providing care under this section, including
15those services currently provided by counties.
SB548, s. 3
16Section
3. 46.278 (1m) (am) of the statutes is amended to read:
SB548,4,1917
46.278
(1m) (am) "Intermediate care facility for
the mentally retarded persons
18with mental retardation" has the meaning
given for "intermediate care facility for
19the mentally retarded" under
42 USC 1396d (c) and (d).
SB548, s. 4
20Section
4. 46.278 (2) (a) of the statutes is amended to read:
SB548,5,421
46.278
(2) (a) The department may request one or more waivers from the
22secretary of the federal department of health and human services, under
42 USC
231396n (c), authorizing the department to serve medical assistance recipients, who
24meet the level of care requirements for medical assistance reimbursement in an
25intermediate care facility for
the mentally retarded
persons with mental retardation
1or in a brain injury rehabilitation facility, in their communities by providing home
2or community-based services as part of medical assistance. If the department
3requests a waiver, it shall include all assurances required under
42 USC 1396n (c)
4(2) in its request.
SB548, s. 5
5Section
5. 46.278 (4) (a) of the statutes is amended to read:
SB548,5,136
46.278
(4) (a) Sections 46.27 (3) (b) and 46.275 (3) (a) and (c) to (e) apply to
7county participation in a program, except that services provided in the program shall
8substitute for care provided a person in an intermediate care facility for
the mentally
9retarded persons with mental retardation or
in a brain injury rehabilitation facility
10who meets the intermediate care facility for
the mentally retarded persons with
11mental retardation or brain injury rehabilitation facility level of care requirements
12for medical assistance reimbursement to that facility rather than for care provided
13at a state center for the developmentally disabled.
SB548, s. 6
14Section
6. 46.278 (5) (a) of the statutes is amended to read:
SB548,5,2415
46.278
(5) (a) Any medical assistance recipient who meets the level of care
16requirements for medical assistance reimbursement in an intermediate care facility
17for
the mentally retarded persons with mental retardation or in a brain injury
18rehabilitation facility and is ineligible for service under s. 46.275 or 46.277 is eligible
19to participate in a program, except that persons eligible for the brain injury waiver
20program must meet the definition of brain injury under s. 51.01 (2g), and except that
21the number of participants may not exceed the number approved under the waiver
22received under sub. (3). Such a recipient may apply, or any person may apply on
23behalf of such a recipient, for participation in a program. Section 46.275 (4) (b)
24applies to participation in a program.
SB548, s. 7
25Section
7. 46.278 (6) (e) 1. a. of the statutes is amended to read:
SB548,6,2
146.278
(6) (e) 1. a. An intermediate care facility for
the mentally retarded 2persons with mental retardation that closes under s. 50.03 (14).
SB548, s. 8
3Section
8. 46.278 (6) (e) 1. b. of the statutes is amended to read:
SB548,6,64
46.278
(6) (e) 1. b. An intermediate care facility for
the mentally retarded 5persons with mental retardation or a distinct part thereof that has a plan of closure
6approved by the department and that intends to close within 12 months.
SB548, s. 9
7Section
9. 46.278 (6) (e) 1. c. of the statutes is amended to read:
SB548,6,118
46.278
(6) (e) 1. c. An intermediate care facility for
the mentally retarded 9persons with mental retardation that has a plan of closure or significant reduction
10in capacity approved by the department and that intends to close or significantly
11reduce its capacity within 60 months.
SB548, s. 10
12Section
10. 46.279 (1) (b) of the statutes is amended to read:
SB548,6,1613
46.279
(1) (b) "Intermediate facility"
means has the meaning given for an
14intermediate care facility for the mentally retarded
, as defined in under 42 USC
151396d (d), other than a center for the developmentally disabled, as defined in s. 51.01
16(3).
SB548,6,2519
48.685
(8) The department, the department of health services, a county
20department, a child welfare agency, or a school board may charge a fee for obtaining
21the information required under sub. (2) (am) or (3) (a) or for providing information
22to an entity to enable the entity to comply with sub. (2) (b) 1. or (3) (b). The fee may
23not exceed the reasonable cost of obtaining the information. No fee may be charged
24to a
nurse's assistant nurse aide, as defined in s. 146.40 (1) (d), for obtaining or
25maintaining information if to do so would be inconsistent with federal law.
SB548, s. 12
1Section
12. 49.45 (6m) (am) 1. bm. of the statutes is amended to read:
SB548,7,32
49.45
(6m) (am) 1. bm. Nonbillable services of a registered nurse, licensed
3practical nurse
, and
nurse's assistant nurse aide.
SB548, s. 13
4Section
13. 49.45 (8) (a) 1. of the statutes is repealed.
SB548, s. 14
5Section
14. 49.45 (8) (a) 2m. of the statutes is created to read:
SB548,7,66
49.45
(8) (a) 2m. "Nurse aide" has the meaning given in s. 146.40 (1) (d).
SB548,7,179
49.45
(8) (a) 4. "Patient care visit" means a personal contact with a patient in
10a patient's home that is made by a registered nurse, licensed practical nurse, nurse
11aide, physical therapist, occupational therapist, or speech-language pathologist who
12is on the staff of or under contract or arrangement with a home health agency, or by
13a registered nurse or licensed practical nurse practicing independently, to provide a
14service that is covered under s. 49.46, 49.47, or 49.471. "Patient care visit" does not
15include time spent by a nurse, therapist, or nurse aide on case management, care
16coordination, travel, record keeping, or supervision that is related to the patient care
17visit.
SB548, s. 16
18Section
16. 49.45 (30m) (a) 2. of the statutes is amended to read:
SB548,7,2119
49.45
(30m) (a) 2. Services in an intermediate care facility for
the mentally
20retarded persons with mental retardation, as defined in s. 46.278 (1m) (am), other
21than a state center for the developmentally disabled.
SB548, s. 17
22Section
17. 49.45 (42) (b) of the statutes is amended to read:
SB548,7,2423
49.45
(42) (b) The individual is not eligible to receive home health
aide services
24under medicare, as defined in sub. (3) (L) 1. b.
SB548, s. 18
25Section
18. 49.498 (1) (h) of the statutes is amended to read:
SB548,8,2
149.498
(1) (h) "
Nurse's assistant Nurse aide" has the meaning given
for "nurse
2aide" under
42 USC 1396r (b) (5) (F).
SB548, s. 19
3Section
19. 49.498 (2) (e) 1. of the statutes is repealed.
SB548, s. 20
4Section
20. 49.498 (2) (e) 2. of the statutes is amended to read:
SB548,8,75
49.498
(2) (e) 2. A nursing facility may not use the individual as a
nurse's
6assistant nurse aide unless the nursing facility has inquired of the department
7concerning information about the individual in the registry under s. 146.40 (4g).
SB548, s. 21
8Section
21. 49.498 (2) (e) 3. of the statutes is amended to read:
SB548,8,139
49.498
(2) (e) 3. A nursing facility shall provide the regular performance review
10and regular in-service education that assures that individuals used as
nurse's
11assistants nurse aides are competent to perform services as
nurse's assistants nurse
12aides, including training for individuals to provide nursing and nursing-related
13services to nursing facility residents with cognitive impairments.
SB548, s. 22
14Section
22. 50.01 (2) of the statutes is amended to read:
SB548,8,2215
50.01
(2) "
Nurse's assistant
Nurse aide" means a person who performs routine
16patient care duties delegated by a registered nurse or licensed practical nurse who
17supervises the person, for the direct health care of a patient or resident. "
Nurse's
18assistant Nurse aide" does not mean a
feeding assistant, as defined in s. 146.40 (1)
19(aw); a person who is licensed, permitted, certified, or registered under ch. 441, 448,
20449, 450, 451, 455, 459, or 460
; or a person whose duties primarily involve skills that
21are different than those taught in instructional programs for
nurse's assistants 22nurse aides.
SB548, s. 23
23Section
23. 50.04 (2) (c) 2. b. of the statutes is amended to read:
SB548,8,2524
50.04
(2) (c) 2. b. A shortage of nurses or
nurse's assistants nurse aides 25available for employment by the nursing home exists.
SB548, s. 24
1Section
24. 50.04 (2) (d) (intro.) of the statutes is amended to read: